AFAQ MALIK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 787/2022

[2026] HKCFI 2806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 787 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 17 August 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 12 August 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 June 2021 (the “Notice”), refusing his application for non‑refoulement protection. 

The Applicant’s claim

2.  The Applicant is a Pakistani national, now aged 25.  He surrendered to the Immigration Department on 1 September 2020 claiming to have sneaked into Hong Kong from Mainland China on 25 June 2020.   On that same day he lodged a claim for non-refoulement protection.  His claim was assessed on all four applicable grounds and rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of that Decision.

3.  His personal background, the factual background leading to the present application, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims he will be harmed or killed by his two paternal uncles, if returned to Pakistan, because of a land dispute. 

4.  His case is that his grandfather had passed a parcel of 10 kanals of residential land (the “family land”) to his father and his five uncles.  At the outset, his father and each of the uncles enjoyed separate but equal shares of the family land.  After three of his uncles passed away over the years, his remaining two uncles proposed to take over the shares of family land owned by the three deceased uncles.  However, the Applicant’s father objected and suggested that the deceased uncles’ shares should be equally distributed to the surviving siblings.  At the hearing, the Applicant claimed that the remaining two uncles wanted the Applicant’s father’s share of family land as well.

5.  A number of incidents ensured in around 2019 in the course of which the Applicant and his elder brother were assaulted and verbally threatened by the two uncles and their men.  The Applicant was injured, though not seriously.  He made a complaint to the police station but the police took no follow up action because one of his uncles had connections to the police.  Out of fear, his father arranged for his elder brother to work in Saudi Arabia and for the Applicant to move to Lahore where he stayed for well over three months applying for his China visa.  Then he moved to China and from there he sneaked into Hong Kong. 

The Board’s finding

6.  The Board accepted the basic facts as asserted by the Applicant. It accepted that he had been harassed and injured as described more fully in both the non-refoulement claim form and record of screening interview.  It also accepted that he still fears his two uncles and subjectively believes that they would harm him if he were to see them again.

7.  However, the Board did not accept that his uncles would harm or kill the Applicant if he were to return to Pakistan.  It found it odd that the Applicant’s father who is the only other shareholder of the family land and main opponent to the uncles’ alleged scheme remained and had not been harmed or threatened for almost three years.  It considered the Applicant’s problem is located at the home area and found it improbable that his uncles would look for him all over the country to harm him.  As the Applicant recovered quickly after the injuries, it found the injuries he suffered did not attain the required threshold to entitle him to protection under any of the applicable grounds under the Unified Screening Mechanism (the “USM”).  It accepted that the police did take steps as a result of the Applicant’s complaint, but allegedly did not take the matter further.  It also accepted on the Applicant’s own admission that he had not sought police assistance in respect of two of the three attacks and in respect of the one he had complained he took no follow-up action with the police or other authorities.

8.  The Board found the Applicant’s dispute with his uncles is a private dispute and he was not being targeted for a reason under the 1954 Convention relating to the status of refugees and its 1965 Protocol (“Convention reason”).  It also found the injuries or ill-treatment he suffered did not fall within the meaning of ‘torture’ under section 37U of the Immigration Ordinance.

9.  On the basis of authoritative and credible country of origin information (“COI”), the Board found the Pakistani police are held to high standards in serving the public.  And that various avenues appear to be accessible to the Applicant.  It considered state protection available.  It also found the Applicant, being a young and able-bodied person would have no problem relocating in other parts of the country.

10.  Applying the law applicable to non-refoulement protection to the facts found, the Board found the Applicant had failed to establish his entitlement to protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal.

Legal principles applicable to judicial review

11.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

12.  At the hearing, after the legal principles in the preceding section were explained to him, the Applicant said he had no complaint about procedural unfairness but complained that the Decision was made too quickly as to suggest it was not made after proper and seriously consideration. He also claimed that his father was killed by his uncles.

13.  The oral hearing before the Board was held on 10 May 2022.  The Board deliberated for three months and delivered its Decision on 12 August 2022.  The Decision could not be said to have been made too quickly.  The Decision covered 30 pages.  It appears to be a well-written decision with a balanced coverage on the facts, the law, the COI, the findings and reasons for the findings.  The Decision could not have attracted such adverse criticism.  There is no substance in this ground.

14.  The Applicant produced a copy of a death certificate certifying that a person by the name of Hifazat Khan died in his home on 14 January 2026, that the reason of death is “Firing” and the nature of death is described as “unnatural”.  The Court noted that the name of the deceased has no resemblance to the Applicant’s name.  But the Applicant said this is not unusual.  He also produced a statement from the Mesri Banda Police Station certifying that his father was shot.  All these documents refer to events which happened four years after the date of the Decision which could have no bearing on the propriety of the Decision.

15.  In his Form 86, the Applicant annexed a document titled ‘Grounds on which Relief is Sought’ setting out six grounds of application.  Some of these grounds are directed at the Board and some at the Director.  For the Applicant’s benefit, it is assumed that all the grounds are directed at the Board.

16.  First, he alleges that the Decision is not reasonable and fair.  The basis of his argument is that the Decision was made too quickly.  For reasons as explained above, this ground is not substantiated.

17.  Second, he complains that the Board failed to appreciate or give proper weight to the presence of state acquiescence in his case.  He claimed that “he was tortured at the behest and the state law enforcement agencies as well as those in the high ups of political circles.”  The Applicant’s case as summarised in paragraphs 4 and 5 above is that he was injured or ill-treated by his two uncles.  There is no evidence of involvement by government officials or political party.  This ground is probably the creation of “copy and paste” from an application which has no relevance to the facts in the present case.

18.  In a switch of the tone of his argument, the Applicant argues that he could not get fairness from the government instead of claiming he was injured or ill-treated at the best of government officials.  He said he was shot at on the family land and at his home.  He said he had mentioned that in his non-refoulement claim form (“NCF”).  These were not mentioned in the Decision.  The Court took his complaint seriously and called for a copy of his NCF from the Board.  In his NCF he mentioned three incidents in 2019.  He said in January 2019, he and his brother had an argument with the uncles on the family land and their uncles beat them with bare hands.  There was no mention of any shooting on the land.

19.  Next, he said a few months later, he and his brother bumped into the sons of one of his uncles (“his cousins”) in the market.  His cousins threatened them and “punched their backs and shoulders multiple times”.  There was no mention of any shooting. 

20.  Then, a few weeks or a few months later, the Applicant and his brother bumped into one of his uncle and the two cousins.  His uncle was holding a pistol.  The Applicant and his brother immediately ran home.  His uncle and cousins chased after them.  There was no mention of shooting.  After they had rushed back home and shut the door, the Applicant heard gunshots outside his home.  He reckoned his uncle fired shots in the air.  This is the only incident when a gun was fired.  There was no shooting at the family land or in his home.  There was no shooting at the Applicant or his brother while they were being chased.  The shooting was, as the Applicant reckoned, outside his home and probably aimlessly in the open air.  The description in the NCF took away the horrifying atmosphere as described by the Applicant in court.  The Board’s summary of the three incidents is an adequate summary.  It reflects the objective circumstances and conveys the fear felt by the Applicant.  More important is that the Board had a copy of the NCF before it and as summarised in paragraph 6 above, the Board accepted the Applicant’s case and the basic facts as asserted by the Applicant.  It accepted that he had been harassed and injured as described more fully in both the NCF and record of screening interview.  It also accepted that the Applicant still fears his two uncles and subjectively believes that they would harm him if he were to see them again.  It is obvious that the Board was aware of the shooting and had taken it into account in its assessment.  There is no substance in this complaint.

21.  Third, the Applicant complains that the Board placed too much weight on the COI and failed to take his personal background and experience into account.  He complains that he could not get justice from the police.  The COI, including those concerning state protection in which the police are involved, are all from authoritative and credible sources.  As for the weight to be given to the COI, it is a finding of fact solely for the Board.  The Applicant’s concern that the Board failed to take his personal background and experience into account is totally unfounded because the Board actually accepted his evidence and even accepted that he is subjectively in fear of his uncles.  The entirety of the Board’s finding of these primary facts are based on the Applicant’s own personal experience.  Much of the secondary finding of the Board are also based on his own evidence, such as that the injuries he suffered did not attain the requisite threshold, that the conduct of the uncle and his cousin evinced no intention to kill the Applicant or to cause him serious harm, that with his age and experience he had no problem relocating to other cities in Pakistan.  The rest of the Board’s finding of secondary facts are based on facts or evidence in respect which the Applicant had no input.

22.  Fourth, he complains that the Board failed to take such argument into account or give sufficient weight to such argument.  When asked to identified the argument, he said it is the fact that his life is in danger.  Whether his life is or was or would be in danger is a question of fact for the Board to find at the end of the day based on all the evidence.  It is not an argument but his assertion.  Then, he repeated that his father was killed in January this year as evidence of the risk to his life.  As explained early, that is a fact or assertion which had not occurred or had not been made at the time of the Decision.  Anyway, for what that ground is worth, this Court will re-visit this issue in its overall scrutiny of the Board’s Decision.

23.  Fifth, the Applicant accuses the Board of unfairly and/or improperly assessing whether to accept his explanations by unreasonably requiring him to respond to questions that he was not in a position to respond.  When asked to identify the unfair questions asked, the Applicant simply said he could not remember.   The validity of this ground could not be assessed.

24.  Sixth, he submits that on the evidence his appeal should have been allowed instead of be dismissed.  The answer to this ground is that whether the Applicant could show error of law, procedural unfairness or irrationality in the Decision which is the ultimate question for this Court.

25.  In conclusion, none of these grounds is substantiated.

Overall scrutiny

26.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and COI. 

27.  The Board accepted the basic facts as asserted by the Applicant.  It accepted that he had been harassed and injured as described more fully in both the non-refoulement claim form and record of screening interview.  It also accepted that he still fears his two uncles and subjectively believes that they would harm him if he were to see them again.  On the basis of his evidence and the COI, the Board drew inferences and made finding of secondary facts.   Then, applying the law applicable to non-refoulement protection to these facts, it found the Applicant had failed to prove his entitlement to protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are finding of fact, they are exclusively within the realm of the Board, which the Court in a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

28.  For the above reasons, the Applicant’s leave application is refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1